One student's random LLB blog as he plunges deep into the bramble bush

Tuesday, July 6, 2010

Conflicting rights?

Recently I submitted an entry to a competition on whether equality laws trump freedom of conscience. I thought that I would share my entry with you and see what you think of it:

The recent ruling in McFarlane v. Relate Avon Ltd [2010] I.C.R. 507 gives rise to concern by many that freedom of conscience has been trumped by equality laws. Some would even claim that laws prohibiting discrimination oppress those who hold particular religious beliefs. Yet this is an oversimplification of the issue at hand. Few would argue that Thomas Hobbes’ definition of a free man “he, that in those things, which by his he is able to do, is not hindered to do what he has a will to do”[1] could be readily applied to society today. Most would agree instead with Sir John Donaldson that:

“The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law or by statute”.[2]

After the horrors of World War II, the European Convention on Human Rights (ECHR) was written to secure certain fundamental rights of citizens under the law. Freedom of conscience, religion and thought are protected by Article 9 of the ECHR and were incorporated into domestic legislation by the Human Rights Act 1998. However, Article 9 goes on to state that manifestations of those rights may be limited in a democratic society for a number of reasons. One of those reasons is to protect the rights of others. Freedom of conscience is thus a limited right.

Article 14 of the ECHR however provides an absolute right – to be protected from discrimination. Many would argue it is in fact a positive right which places obligations on the state to ensure that individuals are protected from discrimination. The increase in the number and scope of equality laws since the Human Rights Act 1998 supports this view.

It has fallen upon the courts to balance the rights protected by Articles 9 and 14. When manifestations of freedom of conscience, religion or thought conflict with equality laws, courts have found in cases ranging from Sahin v. Turkey (44774/98) [2007] 44 E.H.H.R. 5 to Ladele v. IslingtonLBC [2009] EWCACiv 1357 that freedom from discrimination takes precedence. Freedom of conscience, thought and religion remain intact. It is discriminatory manifestations of a belief that may be prescribed by the state.